Man Stopped By Cops For Supposedly Voluntary NHTSA 'Survey' Sues City And Police Dept. For Violating His 4th Amendment Rights

from the completely-preventable-misunderstanding,-but-no-one-wanted-to-prevent-it dept

As has been noted earlier here at Techdirt, the NHTSA (National Highway Traffic Safety Administration) has been collaborating with law enforcement agencies around the nation to collect blood and saliva samples from drivers. This collection is part of a NHTSA "survey" which is looking to determine how often drivers drive while possibly impaired by drugs or alcohol. Providing the NHTSA with either of these fluids is completely optional (citizens are rewarded monetarily for their contribution), but the use of uniformed officers (supposedly solely for crowd control and security of the payment funds) and patrol cars has given many drivers the impression that these stops (and collections) are actually mandatory -- or at the very least, highly recommended.

The Fort Worth, TX police department found itself on the receiving end of a considerable amount of criticism for its participation in the blood/saliva collections. The PD first attempted to deflect the criticism by offering standard excuses. When that failed to work, the police chief offered a very contrite apology for participating in the survey and "jeopardizing the public trust."

This backlash hasn't slowed the NHTSA which has taken its blood and saliva survey to Reading, Pennsylvania. While the outrage wasn't nearly as pronounced as it was in Ft. Worth, it was still notable. However, Police Chief William Heim hasn't seemed too concerned by citizen complaints. He called the whole thing "innocuous" and made this laughable assertion:

"People are not pressured by police presence to do something they don't want to."

Au contraire, Chief Heim. Police presence is often all it takes to make voluntary experiences seem mandatory. Ricardo Nieves, one of those flagged down by Reading police officers, felt the experience was anything but voluntary, and that attempting to leave would have been greeted by a possible arrest.

The Reading city council and the mayor himself also expressed concern about the use of police officers to acquire "voluntary" blood and saliva samples. For his part, Chief Heim appears to be ready to just ride out this outrage without offering any concession towards the offended public.

But if that's what Heim had planned, Nieves just threw a legal wrench into the works. Nieves has sued the city of Reading, Chief Heim, Mayor Vaughn Spencer, two unnamed employees of the private contractor (Pacific Institute for Research & Evaluation [PIRE]) performing the fluid collections, as well as PIRE itself

Nieves claims his Fourth Amendment rights were violated by the supposedly voluntary collection, which felt much more mandatory thanks to the police presence. Here's his description of the incident.

On Friday, December 13, 2013, plaintiff was traveling on the Bingham Street Bridge into the City of Reading, Pennsylvania, a public roadway. A cruiser owned and operated by the City of Reading Police Department was parked by the side of the street with its lights flashing where plaintiff was. Bright orange security cones lined the lane where plaintiff was driving. Plaintiff was in the right hand lane and the lane to plaintiff’s left was full of traffic such that he could not pull over to change lanes.

Defendant Doe stepped out into plaintiff’s lane of traffic, blocked his further advance, and flagged him to pull off the public road into a parking lot on Laurel Street. Having no ability to advance further on the road, and with no ability to move into the left-hand lane because of traffic, plaintiff drove into the parking lot. In the parking lot were five to seven improvised parking spaces outlined on three sides with orange security cones. Nieves pulled into one of these security cones.

Nieves reasonably believed under the totality of the circumstances that he was being stopped by the Reading Police Department because of the flashing lights of the police car on the street, the fluorescent orange cones on the street and in the parking lot, and the presence of a police car in the parking lot that was occupied by a police officer.

Jane Doe, a woman with a clipboard came up to plaintiff’s car and began to speak to him.

Jane Doe spoke quickly and said several things, including that plaintiff was not being cited, that plaintiff had done nothing wrong and that plaintiff was not being “pulled over.”

The last statement was clearly false, because plaintiff had only pulled over after John Doe had stepped into the middle of plaintiff’s lane of traffic on the public street and flagged plaintiff into the parking lot, all while lights were flashing on the police car parked at the location.

Defendant Doe stated that the purpose of the stop was a survey of drivers’ behavior and that she wanted to take a cheek swab to check for the presence of prescription drugs. She also stated that plaintiff would be paid if plaintiff agreed to the same.

Plaintiff refused to provide the cheek swab she requested.

Jane Doe then tried a second time to convince plaintiff into providing a cheek swab. Plaintiff again refused to provide a swab.

A third time Jane Doe again tried to coerce plaintiff into giving a cheek swab. At this point plaintiff stated to her very firmly, “No. Thank. You.”

Jane Doe then tried to hand plaintiff a pamphlet, which plaintiff did not accept. Jane Doe then walked away from plaintiff’s car. Plaintiff then tried to exit the parking lot but found no means of egress. Other cars had by then also apparently been pulled off the road.

Finally, a Reading police officer waved Nieves towards where he had been originally flagged down and indicated he should re-enter traffic there.

As he points out in the filing, at no time did Nieves feel he could leave without being subjected to arrest and prosecution. Such is the power of law enforcement officers and their vehicles, even if they are supposedly off-duty and serving only as "security."

The use of police to conduct this NHTSA survey has fundamentally altered the equation of a car stop, and the cops have done this to themselves. Aside from the absurd Georgia decision, there was never a suggestion that a driver had authority to ignore the “command” to pull over from a cop with lights blazing. That can no longer be said as a matter of law now that the police have squandered their authority to assist in a “voluntary survey.”

Flashing lights look no different when it’s a lawful sobriety checkpoint than when it’s a voluntary survey conducted by private contractors for a government agency. While the former requires compliance, the latter is of no consequence whatsoever. To borrow from Prouse’s rationale, just as there is no law preventing police from chatting you up like anyone else on the street, there is no law requiring you to chat ‘em back. Not in the mood to chat? Keep walking.

Not in the mood to take a survey? Keep driving. Forget those flashing lights. This is the message that comes of the extension of authority without any lawful basis or judicial approval.

Of course, this is hardly a victory for citizens. Greenfield notes that bypassing a set of flashing lights that could be taken either way (voluntary/mandatory) may just net citizens brand new sets of bullet holes.

Chief Heim claims it's all voluntary and not a big deal, but anyone arriving at these not-mandatory checkpoints won't know that until he or she has repeatedly refused to surrender blood or saliva. This whole situation could have been avoided by either a) not allowing law enforcement officers to participate (off-duty or not) or b) posting signage well in advance of the stop that participation was completely voluntary and indicating clearly where those wishing to bypass the stop could route themselves. Instead, these agencies lent their reputations and implied "color of law" to private contractors fronting for a regulatory agency and now, everyone involved -- cops and citizens -- is worse off for it.

Kickbacks

I was driving down an interstate highway one day. A police patrol car had someone already pulled over on the right hand shoulder, with his lights on.

I merged into the left hand lane, to that I wouldn't risk clipping the officer as a drove by. As I'm driving by, I notice the officer waving his arm and hand in the air.

I wasn't sure if he was waving at me, or someone else who was driving by, because there was a lot of traffic. So i shrugged my shoulders and kept on driving.

Well, he was waving at me, and about a mile down the highway I see this police cruiser (no lights on) closing in fast behind me.

He drives right by me, then merges into my lane in front of me, then slams on his breaks in front of me forcing me off onto the shoulder (still no red or blue lights on).

He then proceeds to ask me if it's my first day driving and asks me if I saw him wave me over. I told him I didn't see him wave me over (a half truth, because I honestly wasn't sure who he was waving at as I drove by at 60MHP).

The officer responds to me not seeing him wave, by saying, "I'll make sure you see me next time".

He then wrote me 3 traffic citations:

1. Failure to yield to an emergency vehicle2. Improper use of the left lane.3. He also cited me for speeding, stating that he had a "sensor" on his front car bumper that could tell how fast I was going as he raced past me with no emergency lights on.

I had to get a lawyer, but eventually all charges were dropped and I had to pay a $50 dollar fine, but no points on my license.

I can see why people are getting confused about these so called "voluntary" traffic stops.

Sure gives the impression of mandatory sobriety check points. Make an effort to evade one of these you will be pursued and give even closer scrutiny. I always have to laugh when the Monday paper proclaims a great "victory" for inconveniencing hundreds of driver and making four DUI arrests. O course a couple dozen others are always cited for other offenses, no insurance, seat belts, expired tags etc. If the point is to get drunk drivers off the road wouldn't all that manpower be better utilized by having extra officers cruising a much wider area watching for actual indications of impaired driving and stopping only those with probable cause?

Woops!

'Voluntary', right...

Flashing lights on the cruiser, traffic cones to direct vehicles, officers walking directly in front of drivers so the only options are 'run the officer down(and admire your new swiss cheese vehicle and body decorations)' or 'pull over into survey area'...

Yeah, the only people who would claim there was 'no pressure to comply' during something like that would be a cop.

If the cops are truly off-duty, what are they doing in cop cars, using flashing lights, and wearing their uniforms? That sounds like a gross violation of what should at least be rules against using your police resources for non-police activities (such as flashing your lights as you drive home because you want to get through traffic faster). Not to mention, having someone step out into the road in front of your vehicle and flag you over is pulling you over. Unless you wouldn't be charged with attempted murder for trying to run them over, them stepping in front of your vehicle and leaving you no other choice than to comply with the direction they want you to go is coercion.

Re:

Here's an idea... if the cops really were off duty while they were doing this, then they should be treated as a normal person, and what would most people do if some idiot moved to stand in front of their vehicle and tried to get them to go a specific direction? Blast the horn right in their face until they moved.

Would almost certainly get the one laying on the horn arrested for some reason or another('contempt of cop' springs to mind), but it would seem to be a pretty surefire way to put to rest the lie that the cops weren't there in any official capacity, and were only acting as security.

Bullshit

Off duty cops? Were they wearing signs saying they were off duty? How is anyone to know they are not on the clock otherwise? Certainly, if you pass up a cop on duty who is after stopping you there WILL be a penalty you will pay for ignoring him.

No, this is purposely hiding the fact they were off duty because they are in uniform and only they know they are off duty. The average citizen does not. If it looks like a duck, quacks like a duck, and walks like it duck, it ain't a hippopotamus.

Hello Screwballs, come at me!! ;)

Walter White had it down!!!!!!! All humanity is out the window, just a matter of time before our greedy ways collapse this system we call "society"... Man, religion/tradition is really necessary for these screwballs, sometimes we must let the idiots implode on themselves, but what are we left with? Can this be an indecision Meme?

Re:

Everyone is screwed, but it is the best we have... so what do we do about it? Complain? Do we really want to live in a Chinese environment when they take over? (separate rant, sorry) our younger generations suck so much cock and complain because of global competition and lack of a global mindset... We need to strike fear into china to let them know they are our bitch (china can suck my cock).

Re:

i seem to recall reading where another country, possibly Sweden, had a massive database of all of it's citizens. who is to say that this isn't what is going on here? who is to say that, although starting relatively small, this practice isn't going to balloon and involve every citizen, in every town, in every state, everywhere? that would mean the authorities would have a permanent record of every single person, everywhere and all done 'voluntarily'! it's surprising how citizens information can be collected, under what appear to be the most innocent of circumstances.given the way the authorities have been removing various parts or ignoring when it suits, various parts of the Constitution, i am doubtful whether the law suit will succeed. i think it should, but even if it does, it wont stop this practice, because, like the NSA surveillance, there is much more going on here than both meets the eye and we are being told.i think it goes back to what i remember reading about terrorism. if a nation becomes scared enough, terrorism stops because the authorities of the nation do the job for the terrorists! to me, this is what is happening in the USA at the moment. and actually, the effects of the 'self-induced terrorist acts' are worse than what are regarded as true acts of terrorism committed by those from a different nation!

Re:

Its probably better to take the $50 and cheek swab. When was the last time any normal citizen was successful in preventing a new law from being passed that didn't just allow the police/feds to do what they origionally wanted to do in the first place? Give them a hard time with this 'innocuous' survey, and they'll be back with the book waving everyone into a parking spot.

"Defendants John Doe and Jane Doe held plaintiff against his consent when they forced him off the public road into the parking lot, held upon under conditions that plaintiff reasonably believed that he would be subject to arrest and prosecution if he were to leave without Jane Doe’s consent"

"Jane Doe"'s activities are documented in paras 20 to 30.

"Jane Doe" wasn't actually a party to the car being forced off the public road into the parking lot. "John Doe" did that. "Jane Doe" only explained that he hadn't been pulled over, and tried to get a cheek swab. She did not tell him that he had to provide a cheek swab, and indeed stated that he would be paid for the cheek swab. There's nothing in those paragraphs to show that "Jane Doe" did or said anything to make the plaintiff believe he was being held against his will by her.

I see nothing to suggest that "John Doe" was acting upon the explicit instructions of "Jane Doe". I don't see anything alleging she's responsible for these suspicionless stops.

Absent that, what did Jane Doe do wrong, other than be paid to rock up to people and explain that if they hand over a cheek swab they'll get some money? She could be completely innocent in all this, and indeed (unless PIRE gets its management to do the dirty work) probably is.

Incidentally ...

Para 50:"50. The actions of John Doe and Jane Doe were taken with the express"

The express what?

Do American lawsuits just sue everybody, just in case? Otherwise, absent any facts to suggest knowing wrongdoing, I don't actually see why 'Jane Doe' is being sued. But IANAL. Can anyone explain?

The authorities once said "To Serve and Protect", now they say "To Protect and Serve". Our government has become a foreign power as it is no longer "Of the People, By the People, and For the People", and it is high time we did something about it.

"This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it."Abraham LincolnFirst Inaugural AddressMonday, March 4, 1861

I would guess that by today's standards this guy would be considered a terrorist. Sorry "Honest Abe", maybe the Russians or Chinese will let you in.

Re: Woops!

Re: Re:

I absolutely loathe it when people fail to succeed at defending their own freedom or don't even have the gumption to try and then try and convince other people that it can't be done. Ugh!! Such persons are JUST as bad for the cause of freedom in our nation as any other blatant destroyers of freedom such as the LEOs in this case!

Re:

It may have to wait for warmer weather, but if they had girls in bikinis handing out $20 gift cards, the people trying to get to parking lot would cause a traffic jam. No lawsuit, no backlash, total cooperation and less cost.

It's about control. They want to use force and the compulsion of the the state, just...because...they...can.

Given that he successfully refused the search, my naive take would be that he'd have a better case for unlawful arrest / false imprisonment—he was prevented from moving/leaving—than for an unlawful search that didn't actually occur. I expect the latter to be thrown out on those grounds; no search and seizure has happened to the plaintiff and he can't show that it's likely to happen to him personally in the future.

Hilarous Story

I can envision the scenario.

The road has two or more lanes. There are cones in the right lanes that direct traffic into a parking lot. Most people, perhaps 98% or more, are looking ahead and see the cones, and move into the left lane to avoid the cones. There may even have been a sign posted somewhere explaining the purpose of the cones.

Our plaintiff, on the other hand, saw the empty lane and thought he could get ahead of a bunch of cars, when suddenly he realizes that the yellow cones prevent him from proceeding. All the people in the next lane over are not going to let him in because they merged a hundred or two hundred yards earlier. You are not getting in front of me fool! You should have merged long ago, like the rest of us did.

So now, he is stuck with going into the parking lot because he took a gamble that he could get ahead of everyone, and failed. Too bad for him that Karma found him when it did. If that is the situation, then I am unsympathetic.

Re: Hilarous Story

Okay, so I can just close one lane of a local road and funnel traffic into a holding area to offer them a chance to buy girl scout cookies?

The problem isn't with other drivers or merging traffic (I too resent late mergers) its with the government using police powers to seize vehicles and citizens, and later claim that compliance was voluntary.

Re: Re: Hilarous Story

Jeremy:

No, you cannot close one lane of traffic and funnel people into an area to buy girl scout cookies. Why? Because the roads are owned by the state or city, and not by the Girl Scouts. HOWEVER, I have been on roads where charities collect donations at stop signs or traffic lights, apparently endorsed by the city, I presume via permit, which is very similar.

As for the "seizing" perspective, how was there "seizing"? If the vehicle was "seized," then the driver should have been removed from the vehicle. Instead, the police directed the driver to a specific location. Had it been me, I would have stopped and asked the officer why he was directing me into a parking lot. Lacking a compelling reason for going into the parking lot, i.e., the stop was voluntary, I would have declined and requested his assistance in re-entering the flow of traffic.

I am always cautious with respect to improper or excessive use of police, but I also want to know more with respect to such a supposed improper use to make sure it really is improper, because I have seen exaggerations. I love cameras for that very reason; they take the guess work out of many situations.

Re: Re: Re: Hilarous Story

HOWEVER, I have been on roads where charities collect donations at stop signs or traffic lights, apparently endorsed by the city, I presume via permit, which is very similar.

I don't think that's at all similar. In the case of charities collecting donations at stop signs, etc., they aren't actually stopping people or redirecting them. What the NHTSA is doing is actually stopping people and redirecting them. Two completely different activities.

Had it been me, I would have stopped and asked the officer why he was directing me into a parking lot.

You are the rare exception. Most people would assume that they are being detained, and be afraid to question the cop about the situation because that might make an obviously bad situation even worse.

Not saying that's what people should do, but that what people will do. because the mere presence of a uniformed cop with his car and lights flashing, is inherently confrontational from the beginning.

Re: Re: Re: Re: Hilarous Story

John:

I feel intimidated by those people standing on the corner with their fireman's boot. Frankly, I would avoid the intersection if I knew about it in advance. I never worry about DUI checkpoints, which are frequent where I live, because I never drink and drive, and I always wear my seatbelt. I just pull up, answer a couple of questions, and, thus far, they send me on my way.

I was pulled over one time by a cop in St. Louis. As the cop approached my car, I rolled my window down and asked if I could help him. He asked me to step out of my car and come to the rear of my car. After unbuckling my seatbelt, I went to the back of my care. He then asked whether I knew my plates were expired the next day. I advised him that I had new tags on the front seat of my car, and after he said he did not want to see the new tags, I thanked him and left.

If you have done nothing wrong, encounters with the police should be just that easy.

survey stops

I currently have a suit at scotus from a Nebraska highway stop...5 mph over limit...issued speed warning, and then personal questioning which I wouldn't engage, which brought on a dog sniff as threatened for not answering...the dog purportedly said 'dope', and at that I was frisked and stuffed into a car cage...I asked whether I was under arrest and was advised that if I asked any more questions, I would be going to jail...funny how they love to ask questions but hate to receive any...then they searched, and didn't find anything because there was nothing to find...i was then released to leave with an admonition for having 'put them through that....'

their response to my suit was that I was 'stand-offish' (no %$#@) and 'nervous', justifying the dog sniff, that I wasn't arrested, and that they had found 'drug residue' during the search, but that it couldn't be collected....

well, isn't THAT just perfect? who isn't 'nervous' with a cop berating you as to not submitting to interrogation? and then the icing on their cake, supposed validation of the ostensible dog alert, thus retro-justifying the search!

turns out the eighth circuit already has a precedent for regarding claims of nervousness 'with great caution', and obviously a dog sniff can be tainted by the self-interest of the handler as to violate due process when used as cause to search...it's quite a nice little package they have, a sort of 'carte blanche' to search motorists at will...the dog adds an air of credibility and objectivity, but it's anything but...the most baffling was the body seizure BEFORE finding anything illegal! the lower courts (neb. district & 8th circuit) are entirely disinclined to hold any of this to account...thus I have worked my way to scotus, #13-753...